Colorado Pre-Lien Legislation 2012

Colorado Pre-Lien Update

The Colorado Association of Home Builders Government Affairs Committee removed mechanics’ liens as a proactive item from their 2012 legislative agenda and as such will not be proceeding with a bill on this issue. 

In 2011, House Bill 11-1020, initiated by the CAHB was considered by the House Economic and Business Development Committee.  On March 3, 2011 the Committee - on a 13-0 vote - referred HB 11-1020 to a Legislative Committee for further study.  I participated on the committee through the summer and early fall.  A revised version of a possible bill was reviewed this week by CAHB, who decided not to pursue the bill in the 2012 legislative session.

Jean Arnold, Esq.

NAVIGATING SMALL CLAIMS COURT

NAVIGATING THE LEGAL SYSTEM ON YOUR OWN IN SMALL CLAIMS COURT

Small claims court can be useful when the amount in controversy is $7,500 or less.  It is a quick process that avoids attorney's fees and the delays of typical litigation.  There are some excellent self-help resources at the websites below if you decide to embark on the process or if you find yourself involuntarily involved.

http://www.courts.state.co.us/Self_Help/Local_Small_Claims.cfm
http://www.courts.state.co.us/Forms/Forms_List.cfm?Form_Type_ID=9

Some of the important steps and rules of the small claims court are as follows:

1. Only certain actions can be filed in small claims court, so first make sure you have a case that is allowed to be heard in small claims court.  You can see a list of the correct types of cases at Colorado Revised Statute §13-6-403 or at the self-help website. 

2. There is a limit for how much money you can sue for in small claims court.  Your amount has to be $7,500 or less, which includes interest. 

3. Your trial will be before a Judge or Magistrate.  There are no jury trials in small claims court.

4. You will sue in the county in which any of the defendants resides, is regularly employed, or is a student at a University.  In an action involving real property, such as a landlord-tenant dispute, the action may be brought in the county in which the subject real property is located.

5. You can print the forms off of the self-help website above and file them in the county that you choose.  If you are the Plaintiff, you will need to file the Notice, Claim and Summons to Appear for Trial.  You will also need to have those papers served on the Defendant(s) and file an Affidaivit of Service.  If you are the Defendant, you need to appear to the named court on the day listed on your summons.  Failure to appear could result in a default judgment against you. 

6. Service can be obtained by a Sheriff's Department or a private process server.  You must have the defendant(s) served personally.  You can recover your costs of service in a final judgment against the Defendant(s). You can also recover the filing fee as a cost.  The filing fee depends on the amount of your claim. If you are the defendant and you win at trial or you win a counterclaim, you can recover your costs. 

7. If you obtain a judgment, the court will not help you collect that judgment.  If you live near Jefferson County, there is a collection clinic taught at the courthouse every first Tuesday of the month by Arnold & Arnold, LLP. 

Kelley G. Shirk, Esq.

Differences under Chapter 7 and Chapter 13 of The Bankruptcy Code: Secured or Unsecured, payment of judgment, impairment of exemptions?

What are the Differences under Chapter 7 and Chapter 13:  Secured or Unsecured, payment of judgment, impairment of exemptions?  By Jean C. Arnold, Esq.

A.             Payment of judgment – unsecured debt.  In Bankruptcy, it is unlikely the debtor will pay the full amount of the judgment unless the underlying debt is found to be non-dischargeable under 11 U.S.C. §523 or the judgment is part of a Chapter 13 plan to pay the judgment in full or the judgment is reaffirmed by agreement with Court approval. 

Under Chapters 7 and 13, if there are non-exempt assets available for distribution, the creditor must timely file a proof of claim under 11 U.S.C. §501.  The creditor’s deadline to file the proof of claim is shown on the notice of bankruptcy, and in Chapter 7 or Chapter 13 cases, must be filed within 90 days after the first date set for the meeting of creditors under 11 U.S.C. § 341(a).  See Bankruptcy Rule 3002(c).  The bar date for Chapter 7 and Chapter 13 proofs of claim cannot be extended for excusable neglect.  In re Smartt Construction Co., 138 B.R. 269 (D.Colo.1992) and Jones v. Arross, 9 F.3d 79 (10th Cir.1993).  If the claim is allowed, the creditor will receive the pro rata distribution of assets, following payment of administrative expenses and the Trustee’s fee. 

B.                 Payment of judgment – secured debt.  Under both Chapters 7 and 13, the creditor is entitled to maintain its security interest in the debtor’s property.  The creditor may seek relief from the automatic stay under 11 U.S.C. §362 and proceed to dispose of the secured asset to satisfy its debt.  If the value is insufficient, then the creditor can seek recovery for the unsecured – undersecured – debt component through the claims process under §501. 

There are circumstances under 11 U.S.C. §363(c) allowing the Trustee and debtor to use, sell, or lease secured property.  Such as the use of “cash collateral” in the ordinary course of the debtor’s business under §§ 721 or 1304.  Then, unless the creditor consents, the debtor must comply with the requirements of 11 U.S.C. §363 by providing “adequate protection” to the creditor under §363(e).  Adequate protection generally takes the form of providing the creditor with alternative property to secure the debt.   

C.                 Impairment of exemptions.  Colorado’s listing of exempt property appears in §13-54-102, C.R.S.  However, §13-54-107, C.R.S. expressly prohibits the Bankruptcy exemptions contained in 11 U.S.C. § 522(d).   Thus, because Colorado’s state exemptions are not inconsistent with Federal Law, Colorado residents can only use the state exemptions when filing bankruptcy in Colorado.  In re Parrish, 19 B.R. 331 (D. Colo. 1982).